PART II. 
TESTING AND IMPLIED CONSENT



 



Law Journals and Reviews



 



  Expert and Opinion Testimony of Law Enforcement Officers
Regarding Identification of Drug Impaired Drivers.  23 UH L. Rev. 151.



 



§291E-11  Implied consent of operator of
vehicle to submit to testing to determine alcohol concentration and drug
content.  (a)  Any person who operates a vehicle upon a public way, street,
road, or highway or on or in the waters of the State shall be deemed to have
given consent, subject to this part, to a test or tests approved by the
director of health of the person's breath, blood, or urine for the purpose of
determining alcohol concentration or drug content of the person's breath,
blood, or urine, as applicable.



(b)  The test or tests shall be administered at
the request of a law enforcement officer having probable cause to believe the
person operating a vehicle upon a public way, street, road, or highway or on or
in the waters of the State is under the influence of an intoxicant or is under
the age of twenty-one and has consumed a measurable amount of alcohol, only
after:



(1)  A lawful arrest; and



(2)  The person has been informed by a law enforcement
officer that the person may refuse to submit to testing under this chapter.



(c)  If there is probable cause to believe that
a person is in violation of section 291E-64, as a result of being under the age
of twenty-one and having consumed a measurable amount of alcohol, or section
291E-61 or 291E-61.5, as a result of having consumed alcohol, then the person
shall elect to take a breath or blood test, or both, for the purpose of
determining the alcohol concentration.



(d)  If there is probable cause to believe that
a person is in violation of section 291E-61 or 291E-61.5, as a result of having
consumed any drug, then the person shall elect to take a blood or urine test,
or both, for the purpose of determining the drug content.  Drug content shall
be measured by the presence of any drug or its metabolic products, or both.



(e)  A person who chooses to submit to a breath
test under subsection (c) also may be requested to submit to a blood or urine
test, if the law enforcement officer has probable cause to believe that the
person was operating a vehicle while under the influence of any drug under
section 291E-61 or 291E-61.5 and the officer has probable cause to believe that
a blood or urine test will reveal evidence of the person being under the
influence of any drug.  The law enforcement officer shall state in the
officer's report the facts upon which that belief is based.  The person shall
elect to take a blood or urine test, or both, for the purpose of determining
the person's drug content.  Results of a blood or urine test conducted to
determine drug content also shall be admissible for the purpose of determining
the person's alcohol concentration.  Submission to testing for drugs under
subsection (d) or this subsection shall not be a substitute for alcohol tests
requested under subsection (c).



(f)  The use of a preliminary alcohol screening
device by a law enforcement officer shall not replace a breath, blood, or urine
test required under this section.  The analysis from the use of a preliminary
alcohol screening device shall only be used in determining probable cause for
the arrest.



(g)  Any person tested pursuant to this section
who is convicted or has the person's license or privilege suspended or revoked
pursuant to this chapter may be ordered to reimburse the county for the cost of
any blood or urine tests, or both, conducted pursuant to this section.  If
reimbursement is so ordered, the court or the director, as applicable, shall
order the person to make restitution in a lump sum, or in a series of prorated
installments, to the police department or other agency incurring the expense of
the blood or urine test, or both. [L 2000, c 189, pt of §23; am L 2001, c 157,
§11; am L 2002, c 113, §1; am L 2004, c 90, §5; am L 2006, c 64, §1]



 



Case Notes



 



  Where defendant was lawfully arrested and then
"accurately informed of his or her statutory right to consent or refuse, as
well as the consequences of such consent or refusal", trial court erred in
granting defendant's motion to exclude evidence of defendant's breath alcohol
test result.  113 H. 363 (App.), 152 P.3d 535.